Procedure for searching a suspected gaming house- No search or arrest without warrant possible

Any walled enclosure, space, room, tent etc openly soliciting persons to gamble at that place or any such place where owners/managers make a profit or gain out of the gaming operations is a common gaming house anywhere in India. Any person found in such a common gaming house is presumed to be a gambler irrespective of whether he/she was actually gambling; and punishment prescribed by the different state acts may be awarded to that person.

However it is important to note the procedural aspect of how the police is allowed to enter and search the common gaming house as there have been various instances where family members playing cards in their homes are harassed by police officials.

Section 5 of the Public Gambling Act 1867 and all the state gaming acts prescribe that any place suspected of being a common gaming house shall only be searched and checked if the police official (generally not below the rank of sub-inspector) is authorised to do so by a warrant of either the Superintendent of Police (or Commissioner of Police in metropolitan cities), Judicial Magistrate of first class (or Metropolitan magistrate in certain city areas) or the District Magistrate (District Collector) on receipt of credible information about the conduct of gambling activity in that place. Certain subordinate officials like Additional Superintendent of Police, Sub-Divisional Magistrate, Additional and Assistant Magistrates are also allowed to issue the search-warrant.

The procedure varies in different states but it is sufficient to say that no search of any premise that is even suspected of running gambling operations can be done by the police without a warrant.  No person suspected of running gambling operations can even be arrested without a warrant. Gambling offences are non-cognisable under the Code of Criminal Procedure (CrPc) and thus no investigation can be initiated without the consent of a magistrate.  Such offences are also bailable which means that bail has to be provided immediately on arrest at such amount and guarantees as may be prescribed.

Again for all such searches and for any seizure by the police the presence of at least two independent witnesses of the locality is necessary and mandated by Section 100 of the CrPc. The witnesses should be made aware of the process of search and the items seized. A copy of the items seized should be signed by such witnesses and given to the owner of the premises.

If any of these procedures, i.e. search with a warrant and presence of independent witnesses is not complied with, the person may refuse entry to the police. Again in court, if it is shown that this procedure was not followed, the search and any evidence from the search can be declared as illegal and any findings/evidence from such a search can be disregarded thus acquitting the persons accused of gambling and absolving their liability.